320 P.3d 705
Wash.2014Background
- Defendant Timothy Dobbs engaged in a campaign of stalking, threats, a drive-by shooting, and an uninvited armed entry against his ex-girlfriend C.R.; police found bullet holes, a handgun, threatening texts/notes, and a jail voice mail from Dobbs urging C.R. not to press charges.
- C.R. gave sworn statements to police describing threats and the shooting; she was subpoenaed to testify at trial but did not appear despite being reminded the night before; a warrant issued but she never testified.
- At a pretrial hearing the trial judge found by clear, cogent, and convincing evidence that Dobbs’s intimidation caused C.R.’s absence and ruled Dobbs forfeited his Sixth Amendment confrontation right; the judge also held forfeiture waived hearsay objections.
- A bench trial convicted Dobbs of multiple offenses (stalking with deadly-weapon enhancement, felony harassment, intimidating a witness, drive-by shooting, unlawful possession of a firearm, and obstruction); the Court of Appeals affirmed.
- The Washington Supreme Court granted review to decide (1) whether substantial evidence supported the forfeiture finding and (2) whether forfeiture also waives hearsay objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dobbs forfeited his Sixth Amendment confrontation right by wrongdoing (i.e., he caused C.R.’s absence with intent to prevent testimony) | State: Dobbs’s sustained threats, shooting at C.R.’s home, jail voice mail and texts show pattern of intimidation and specific intent to prevent testimony; these facts make it highly probable he caused her absence | Dobbs: The absence can be explained by other plausible reasons over the two months before trial; no direct statement from C.R. tying nonappearance to fear; evidence does not meet clear, cogent, and convincing standard | Court: Affirmed — substantial evidence supports the trial judge’s finding by the clear, cogent, and convincing standard that Dobbs’s wrongful conduct, with intent to procure C.R.’s absence, caused her nonappearance and thus he forfeited confrontation rights |
| Whether forfeiture by wrongdoing also waives the defendant’s hearsay objections to the absent witness’s out-of-court statements | State: Forfeiture should eliminate both confrontation and overlapping hearsay objections because both stem from the same concerns and equity forbids profiting from wrongdoing | Dobbs: Waiving confrontation does not automatically eliminate hearsay protections; separate evidentiary rules should apply and the State must still meet hearsay admissibility standards | Court: Affirmed — when a defendant procures a witness’s unavailability by wrongdoing, he also waives hearsay objections to the witness’s out-of-court statements |
Key Cases Cited
- State v. Mason, 160 Wn.2d 910 (2007) (adopting forfeiture-by-wrongdoing in Washington and requiring clear, cogent, and convincing proof)
- Giles v. California, 554 U.S. 353 (2008) (forfeiture doctrine limited to defendant’s intent to prevent testimony; historical analysis linking confrontation and hearsay)
- State v. Fallentine, 149 Wn. App. 614 (2009) (Court of Appeals discussion of forfeiture due to witness intimidation)
- United States v. White, 116 F.3d 903 (1997) (treating forfeiture as eliminating related hearsay objections)
- United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012) (articulating elements for forfeiture: wrongdoing with intent to render declarant unavailable that in fact did so)